Pan-American Bank & Trust Co. v. National City Bank of New York , 6 F.2d 762 ( 1925 )

HOUGH, Circuit Judge

(after stating the facts as above). At the very threshold of this matter the parties disagree as to its nature. Pan-American describes it as an action “upon a commercial letter of credit,” while the other side insists that it is brought on an agreement by Pan-American to reimburse City Bank for whatever it paid out on such promise of reimbursement. The difference is more than a technicality, for the nature of any legal procedure is determined by the pleading. That pleading may be bad, but, good or bad, the pleas dominate the evidence, and define or delimit the scope of the pleader’s efforts.

Thus measured, the City Bank is right, in its characterization of the proceeding, for the complaint sounds solely upon the request of. Pan-American that City Bank issue a certain letter of credit. Compliance with that request is then averred, and the pleader concludes by resting on the legal implication that Pan-American should pay the cost of compliance with request. Our first inquiry, therefore, is as to what promise or agreement was made by Pan-American. There is here no question of fact as to what was said or done; everything is in writing; such differenees as exist arise from differing interpretations of written words.

It is true that in the exchange of letters and telegrams the word “guarantee” is continually used; we may even assume that, if the men of affairs who composed the various writings had been asked (before the priee of sugar fell and counsel were consulted) what they had done, the answer might have been that Pan-American had guaranteed payment by some one of a letter of credit. But it is clear that the legal effect of what men do is not determined hy the names they affix to their deeds. The essential nature of their acts determines, and the law has its own names for the results they achieve. Border Bank v. American Bank (C. C. A.) 282 F. 73; Second National Bank v. Columbia, etc., Co. (C. C. A.) 288 F. 17, 30 A. L. R. 1299. Undoubtedly the names by which men describe their acts are evidence of the nature of their doings, often strong evidence ; but acts control names, and that deeds speak louder than words is good law.

We can therefore unhesitatingly hold that the result of the paper writings in evidence was not that Pan-American guaranteed anything; i. e., agreed to answer for the performance of some obligation in the case of another’s default. On the contrary, it did undertake and promise to pay City Bank whatever it lawfully paid, the premises considered, plus one-eighth of 1 per cent. This holding renders unnecessary consideration of the cases regarding guaranties by corporations and especially by banks operating under either the National Banking or Federal Reserve Acts. See Border Bank Case, supra; People’s Bank v. National Bank, 101 U. S. 181, 25 L. Ed. 907; Cochran v. United States, 157 U. S. 286, 15 S. Ct. 628, 39. L. Ed. 704; Coal & Iron Bank v. Suzuki (C. C. A. 2d), 3 F.(2d) 764, opinion filed November 3, 1924.

More specifically, we hold that the legal relation of parties is quite fairly summarized in Pan-American letter to City Bank of May 25th, declaring that “We have opened for account of Seago & Co. a credit through^ you,” meaning that Pan-American had given Seago credit, by means of asking City Bank to use its Brazilian branch to put the arrangement through, while the drafts drawn against the credit might be presented for payment either “to you in New York or to us here” — in New Orleans. The essential nature of the transaction becomes plain, and even simple, when its development is noted; for what Pan-American wanted to do for its customer, Seago, was to issue its own letter of credit available to Barcellos in Brazil. It yielded to the obviously truthful suggestion that its own promise for so large a sum was hardly available in Rio de Janeiro, and it therefore procured City Bank to do for it what business, not legal disabilities, prevented its doing for itself. A plainer reimbursement contract, enforceable in assumpsit, it is hard to imagine.

To this Pan-American answers that the undertaking was on its part ultra vires, a defense which we will assume may be presented, though it appears for the first time in an amended answer served some months after action begun, and bears no relation to the reasons advanced on September 4th for Pan-American’s anticipatory breach of any and all contracts giving rise to liability on the Barcellos credit. Examination of this defense reveals two branches thereof; one that Pan-American as a bank could not contract, and the other that Wuerpel as representing the bank had no authority to contract.

The first objection is disposed of by the above analysis of the contract made, for it is undoubted that Pan-American had perfect chartered authority to issue its own letter of credit to Barcellos; no legal reasons existed against such action, and that course wasplainly the original intent of the New Orleans parties concerned. If, then, Pan-American could issue its own letter, it could agree with City Bank to reimburse payments made by the latter on the letter actually issued; a document not differing legally from ■that originally proposed, but from a business standpoint more available where Pan-American wished it used. This was the commercial as well as the legal relationship with each other voluntarily assumed by the parties hereto, a position very different from that recently discussed in Nowell v. Equitable, etc., Co., 249 Mass. 585,144 N. E. 749, a decision upholding the defense of ultra vires to an action upon a plain and inescapable guaranty.

The second objection we reject on the facts, which uneontradictedly show a course of business by which for purposes of commercial credit Mr. Wuerpel had full authority to act for Pan-American. Discussion of evidence would yield no legal rules; there was not enough testimony impugning Wuerpel’s authority to submit to a jury. His judgment in selecting customers like Seago was and is immaterial.. The method or means of fulfilling the contract now fully described required consideration.

The Rio branch of City Bank existed under the Act of December 23, 1913, and its amendments (TL S. Comp. Stat. § 9745). That statute requires, inter alia, that national banks having foreign branches “shall conduct the accounts of each foreign branch independently of the accounts * * * of its home office, and shall at the end of each fiscal period transfer to the general ledger the profit or loss accrued at each branch as a separate item.” That is, the branch is not a mere “teller’s window”; it is a separate business entity.

To such a branch the home office gave instructions by the cable of May 26th to “negotiate sight drafts” as drawn by Bar-cellos, if accompanied by proper documents. The word “negotiate” is technical, it has received much exposition (see Words and. Phrases, First and Second Series); but the result is expressed in the Negotiable Instruments Law (section 60 of N. Y. Act [Consol. Laws, c. 38]), which sums up judicial exposition by declaring that an “instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transfereé the holder thereof.” Consequently, when the Rio branch, in fulfilling instructions, acquired from Bareellos his drafts drawn on the home office in New York, it “negotiated” them, and became (as no one doubts) the holder thereof, and a holder for value.

But the Rio branch, in so becoming a holder of the drafts, and then sending them to New York for collection, assumed the same relation to its home office that any other bank or person that had similarly negotiated the paper would have assumed. In fact, as the evidence shows, the drafts and aeeompa-' nying documents went from the Rio branch to the New York home office with a demand for credit; i. e., a demand for payment, and payment by the demanded credit was given the branch. This was just what the cited aet of Congress in effect requires, and illustrates the rulings that, in respect of the collection of forwarded paper, branches and a parent bank are to be considered as separate entities. Woodland v. Fear, 7 E. & B. 519; Clode v. Baylay, 12 M. & W. 579; McNeil V. Wyatt, 3 Humph. (Tenn.) 125, considering the point generally; U. S. Bank v. Goddard, 5 Mason, 366, Fed. Cas. No. 917, under the statutes regulating the Bank of the United States; and Chrzanowska v. Corn Exchange Bank, 173 App. Div. 285, 159 N. Y. S. 385, affirmed 225 N. Y. 728, 122 N. E. 877, under statutes regulating banks chartered by the state.

Thus the case presents a legal problem identical with the common one resulting from discount by any indifferent dealer in commercial paper of such a draft as Bareellos’, and presentation by such dealer of the draft to the drawee for payment. An instance is International, etc., Corp. v. Irving Bank (C. C. A.) 283 F. 103. We think it unnecessary to go over again the rules laid down regarding drafts drawn under commercial credits and accompanied by documents evidencing a e. i. f. transaction. Our views as to, these rules and the meaning of “e. i. f.” have been stated in the case last cited, and in Klipstein v. Dilsizian (C. C. A.) 273 F. 473, Harper v. Hochstim (C. C. A.) 278 F. 102, 20 A. L. R. 1232, American, etc., Co. v. Irving, etc., Bank (C. C. A.) 266 F. 41, and Old Colony, etc., Co. v. Lawyers’, etc., Co. (C. C. A.) 297 F. 152.

Thus the question is this: Did the Rio branch obtain with Bareellos’ draft the papers and all of them evidencing a c. i. f. sale as required by the cable of home office to Rio of May 26th, supra, viz. invoices, private and consular, insurance certificate, and bills of lading? This cable is practically the letter of credit; neither the piece of paper called credit 17504, nor a copy of it, could have gotten to Rio before Bareellos was notified and the transaction closed, so far as contract making was concerned. To vary the statement, we think the point may accurately be put as follows: If John Doe had negotiated Bareellos’ draft and received his papers, and Doe should have recovered from City Bank on the draft, then the bank can recover from Pan-American on the latter’s reimbursement contract.

This view affords to plaintiff in error opportunity to object to the sufficiency of every paper presented, and to most of those objections we shall not advert; they have been observed, and that is enough. The correctness of the ruling below depends, in our judgment, on two arguable matters: (1) Were the bills of lading accepted such as the letter.of credit required; and(2) was the insurance of the sort demandable?

The bills of lading in Portuguese recite: “Loaded by the Senhor Hermano Bareellos on board of the steamer Tocantins, * * * at present anchored in the port (or in another steamer belonging to the Lloyd Brasilero or chartered by them), * * * the packages noted on the margin to be transported to New Orleans.” The policies of insurance distinctly cover only sugar on the Tocantins, and are expressed in Brazilian currency “equivalent to (so much) American gold at the exchange rate of 5 $720 per dollar.”

It is obvious that, taken literally as translated, the bills of lading say no more than that the sugar is on board some steamer of the line, not necessarily the Tocantins, while the insurance is invalid unless the sugar was on the Tocantins. There is a further objection to the insurance, to the effect that it is not “dollar” insurance. On this last point we are of opinion that the contract did not require insurance expressed in any particular eurrehcy; it impliedly demanded sufficient insurance and that by the evidence was afforded by the policies complained of. We are not impressed by the suggestion that, because the credit was in dollars, the insurance must be in dollars; it is enough at present to say that we see no indication in this transaction of any such intent of parties. Scott v. Barclay’s Bank, 14 Lloyds List, 89 and 142.

As to the rest of the objection, it is not accepted as an answer that the goods did in point of fact go on the Tocantins, that it was plainly the intent to put them there, and that before drafts were presented in New York the legal relation of the sugar and the Tocantins was exactly what it would have been under an ordinary “received on board” bill. The legal rights of parties must rest on the papers, and on nothing else, because it was a part of the agreement that the psupers to accompany the drafts were to show a c. i. f. sale.

The question whether by usage “received for shipment” bills of lading may be accepted, or whether the drawee may insist on “received on board” bills, received much consideration in Vietor v. City Bank, 200 App. Div. 557, 193 N. Y. S. 868.¹ The present case is unlike the one last cited, because the bills .here are not “received for shipment” bills at all; they recite actual lading on some vessel of the carrying line; they are “on board” bills of some vessel, but not (it is said) of any particular vessel.

It is doubtless true that, when the parties hereto agree, as they did in the United States, that certain documents were to be the test of a transaction (d. e., negotiation in Brazil), it was their intent that the documents should correspond and comply with Brazilian law and usage. Furthermore, the parties agreed with reference to a particular nexus of trades; i. e., the shipping and sugar trades. At this bar, Pan-American argues that it at least had the right to have a jury find that it was aware of any usage or custom to which the (e. g.) bills of lading might conform, or by which they might be validated. This is incorrect; Pan-American agreed that City Bank should do certain things, and that necessarily implied that the bank should act in accordance with such laws, customs, and usages as it encountered in the place or places where the promise was to be and was fulfilled. Neer v. Lang, 252 F. 575, 164 C. C. A. 491; Eames v. Claflin, 239 F. 631, 152 C. C. A. 465.

Doubtless it might have been made a condition precedent to the payment of any draft under the credit letter that the c. i. f. documents must conform to some particular legal standard; e. g., that of New York. Such requirement would possibly have been no more onerous than those actually inscribed in the credit litigated in American, etc., Co. v. Irving Bank, supra; but nothing of the kind was here done. Obviously such an obligation would markedly restrict the availability of commercial credits in the very places where they are most needed, and bankers wish to sell them. Consequently, if a bill of lading (e. g.) is required as a document, it means a bill good by law for its intended purposes where it is issued, and/or by custom of the trade to be served, which custom may and usually does cover transit from shipping port to delivery point. It follows that we ¿eat these documents as measurable by the results of investigating the law of Brazil and the custom of the trade as proven.

As for the suggestion that this case turns on the sufficiency .of the tender in N.ew York, when the draft was there presented, we observe that such doctrines (taken literally), seems to let in inquiry as to what the papers meant at time of presentation, and then the sugar was undoubtedly on the Tocantins en route for New Orleans; but much more important is the result, above enlarged upon, that no one negotiating a draft to be so interpreted can, by any reasonable exercise of intelligence, know whether what he buys in Tokio or Rio will be good in New York or London, and this makes a mere trap out of What is intended to be an aid to commerce.

The Brazilian law, therefore, we treat as a fact to be proven, including the effect of usage or custom under or on that law, and we regard it as proven beyond peradventure that the bills of lading here in question were in universal use in Rio de Janeiro, were the standard form of the Lloyd Braziliero, and were recognized as valid under local law. In the export trade, also, it is proven that bills such as these were the only bills known at the American end of Brazilian trade, and were commonly used and accepted in e. i. f. transactions.

Applying the foregoing to this case, it is to be remembered that by special agreement between the parties “neither the City Bank nor its correspondent in Brazil [was] responsible for the correctness or genuineness of documents,” and Bareellos tendered together the bills of lading in the form above given and the insurance covering on sugar on board the Tocantins, and "the bills were printed forms, except for the word “Tocantins” written in.

The Bio branch was then justified in what it did by the usage of the place and trade, and by the representations of documents furnished by Bareellos, which, considered together, represented to even a most cautious mind that the sugar was on board the Tocantins; for Bareellos offered a set of papers which in terms asserted that Bareellos had put it there. No other interpretation could be given to such a bill confirmed and explained by the insurance policy. It may be granted as immaterial that the representations were substantially true, or that, when the goods sailed and the drafts arrived in New York, the papers were perfect muniments of title to sugar actually on the Tocantins. We hold that, under contract made, the usages of. the trade, and Brazilian law, the Bio branch, regarded as an independent purchaser of the drafts, bought a good claim against the City Bank, and that therefore that bank has a good claim against the Pan-American.

If, as is argued for defendant below, this lays down a measure of liability on the part of City Bank, which it would be loath to assume, were not the negotiator its own branch, answer is that the remedy is in its own hands; it may insert conditions in credit letters which will both safeguard its own coffers, and limit its sale of credit to those learned in legal intricacies.

We have observed one other. contention of defendant below, that the credit tq Bareellos was conditional and was revoked, We are of opinion that by express agreement it became irrevocable as soon as the Bib branch communicated its terms to Bareellos; from that moment Bareellos had contractual rights against City Bank. What would have been the position of the Bio branch, if it had refused to negotiate, is not before ‘us for decision.

To conclude, the evidence given was of such a nature that any verdict for Pan-American should have been at once set aside; therefore the direction for plaintiff below is correct.

Judgment affirmed, with costs.

1 This decision resulted in new trial conducted presumably in accordance with directions given. The resultant judgment for plaintiff was affirmed without opinion in 206 App. Div. 664, 199 N. Y. S. 955, and 237 N. Y. 538, 143 N. E. 733.